Background
The Pasquotank County Department of Social Services filed juvenile neglect petitions in October 2022 concerning three siblings — referred to here as Dahlia, Emmett, and Uma. The trial court adjudicated the children neglected in February 2023 and placed them in DSS custody. Over the following two years, the court held multiple review hearings; in a May 2024 permanency planning order, it found respondent-mother had not made reasonable progress on reunification tasks and expressly ordered that “[l]egal custody of [the children] shall remain with” DSS.
In October 2024 — with the May 2024 permanency planning order still in effect — DSS filed petitions to terminate respondent-mother’s parental rights on three statutory grounds: neglect under G.S. § 7B-1111(a)(1); willful failure to make reasonable progress toward correcting conditions that led to removal for more than 12 months under § 7B-1111(a)(2); and willful failure to pay a reasonable portion of the cost of the children’s care under § 7B-1111(a)(3). Respondent-mother contested the court’s subject-matter jurisdiction, arguing that DSS had failed to attach a proper “custody order” to the termination petitions as required by N.C. Gen. Stat. § 7B-1104(5). DSS had attached the May 2024 permanency planning order, but respondent-mother argued that a permanency planning order does not constitute a “custody order” for these purposes. The trial court terminated respondent-mother’s parental rights on all three grounds, and the Superior Court affirmed.
The Court’s Holding
The Court of Appeals affirmed. Subject-matter jurisdiction over termination-of-parental-rights petitions is conferred by N.C. Gen. Stat. § 7B-1101, which grants district courts exclusive original jurisdiction over TPR petitions concerning children in the legal or actual custody of a county DSS at the time the petition is filed. Under § 7B-1103(a)(3), any county DSS “to whom custody of the juvenile has been given by a court of competent jurisdiction” may file a TPR petition. Section 7B-1104(5) implements this by requiring DSS to attach “a copy of the custody order” to the petition.
Applying In re T.B., J.B., C.B., 177 N.C. App. 790 (2006), the court held that the May 2024 permanency planning order constituted a custody order for purposes of § 7B-1104(5). The dispositive fact was that the permanency planning order expressly ordered that “legal custody of” the three children “shall remain with” DSS — a clause that both affirmatively retained DSS’s custody and could, in theory, have been modified to place custody elsewhere. Because the court chose to maintain DSS custody in the decretal portion of the order, the order functioned as a custody order. The fact that it was entered in the context of a permanency planning hearing rather than a standalone custody proceeding did not deprive it of that character.
The court reviewed the jurisdiction question de novo, as subject-matter jurisdiction is a question of law that may be raised for the first time on appeal. It found the dispositive inquiry straightforward: the children were in DSS custody when the petitions were filed (undisputed), and the court record contained an order expressly placing legal custody in DSS (the May 2024 permanency planning order), which DSS had attached to the petitions. DSS therefore had standing under § 7B-1103(a)(3) and the court had jurisdiction under § 7B-1101.
Key Takeaways
- A permanency planning order that expressly orders that legal custody of the children “shall remain with” DSS constitutes a “custody order” within the meaning of N.C. Gen. Stat. § 7B-1104(5), sufficient to satisfy DSS’s standing requirement to file a TPR petition.
- The operative question under § 7B-1104(5) is whether the attached order affirmatively places or retains legal custody in DSS — not whether the proceeding in which the order was entered was styled as a custody hearing rather than a permanency planning review.
- Subject-matter jurisdiction in TPR proceedings may be challenged for the first time on appeal, making an adequate record of the attached custody order critical; DSS practitioners should confirm the attached order expressly names DSS as custodian in the decretal language.
- Respondent-parents who challenge TPR jurisdiction based on the adequacy of the attached custody order bear the burden of showing want of jurisdiction; an order that maintains DSS custody in its decretal portion satisfies that burden without more.
Why It Matters
North Carolina’s TPR framework requires DSS to attach a custody order to its termination petition as a prerequisite to invoking subject-matter jurisdiction. In re D.A.S. clarifies that DSS need not find a separate standalone custody order if the most recent permanency planning order in the case expressly retains legal custody with DSS — the standard language in virtually every case where reunification has been ruled out and adoption is the primary plan. Respondent-parents’ attorneys should verify whether the attached order is the most recent order in effect when the petition was filed and whether that order’s decretal section expressly names DSS as custodian, because those are the facts that control the jurisdiction analysis.